Citation Nr: 0812575 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 04-02 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the hands and feet, to include as secondary to herbicide exposure. 3. Entitlement to service connection for a kidney disorder. 4. Entitlement to service connection for a right knee disorder. 5. Entitlement to service connection for a right ankle disorder. 6. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The veteran had active service from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The record also shows that by a December 2003 Decision Review Officer Decision, the RO granted service connection for post- traumatic stress disorder (PTSD) and assigned a 50 percent evaluation. A timely notice of disagreement was received in January 2004. The RO issued a statement of the case (SOC) in September 2006 addressing the issue of an increased rating for PTSD. The veteran's attorney attempted to submit a substantive appeal (VA Form 9) in August 2006 which was prior to RO's issuance of an SOC in September 2006. The veteran had 60 days in order to file a timely substantive appeal after the September 2006 SOC was issued. Two VA Form 9's were received (one signed on November 28, 2006 and received in January 2007 and the other received in January 2007) more than 60 days after the issuance of the SOC. By an October 2007 letter, the RO informed the veteran and his attorney that the issue of an increased rating for PTSD was not timely perfected on appeal. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002); Roy v. Brown, 5 Vet. App. 554 (1993). Thus, the Board finds that the issue of an increased evaluation for PTSD is not currently in appellate status. The record also reflects that the veteran's attorney raised the issue of entitlement to an earlier effective date for the grant of service connection for PTSD. This issue has not been developed for appellate review and is referred to the RO for appropriate action. The Board further notes that during the course of the appeal, the veteran's representative submitted medical records on a CD-ROM. There was no indication that the RO had reviewed the records, however, a review by the Board revealed that the records were essentially duplicate copies of post-service VA medical records which are already of record. Therefore, remand for the issuance of a supplemental statement of the case is not warranted. See 38 C.F.R. § 19.31, 19.37 (2007). FINDINGS OF FACT 1. There is no competent evidence that relates a skin disorder to service or any incident of service, including exposure to herbicides in service. 2. There is no competent evidence that relates peripheral neuropathy of the hands and feet to service or any incident of service, including exposure to herbicides in service. 3. There is no medical evidence of a kidney disorder that is in any way related to service. 4. There is no medical evidence of a right knee disorder that is in any way related to service. 5. There is no medical evidence of a right ankle disorder that is in any way related to service. 6. There is no medical evidence of tinnitus that is in any way related to service. CONCLUSIONS OF LAW 1. Service connection for a skin disorder, to include as secondary to exposure to herbicides in service, is not established. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Service connection for peripheral neuropathy, to include as secondary to exposure to herbicides in service, is not established. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. A kidney disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2007). 4. A right knee disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 5. A right ankle disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 6. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in November 2002 and additional notice in September 2005, subsequent to the initial adjudication. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate the claims and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claims. While complete notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claims were subsequently readjudicated in an October 2007 supplemental statement of the case, following the provision of notice. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claims, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed conditions. VA has obtained service medical records and post-service treatment records. Solicitation of a medical opinion is not necessary because (as discussed in detail below) there is no indication that any of the claimed disorders are of service origin. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claims at this time. Factual Background The veteran's service medical records are negative for any findings, treatment or diagnoses of a skin disorder, numbness of the hands and/or feet, kidney disorder, right ankle disorder or tinnitus. On entrance examination it was noted that the veteran had previously injured his right knee which gave way occasionally. Periodic examinations showed that the knee occasionally gave the veteran trouble. The records also indicate that the veteran twisted his left ankle. The report of an October 1968 separation examination included a normal clinical evaluation of all systems and noted no defects or diagnoses. On the Report of Medical History portion of that examination, it was noted that the veteran had a "trick knee-old injury-occasional trouble." Post-service private medical records dated in 2001 and 2002 show that the veteran received treatment for compound nevus on the face and back. In VA outpatient treatment records dated in 2005 and 2006, it was noted that the veteran had dermatophytosis of the skin and nails with a question of chloracne. There was severe onychomycosis of the toe and finger nails. It was also noted that the veteran had had a rash on the lower extremity, diagnosed as nummular dermatitis vs. urticaria and that it was resolved. In April 2006, the veteran was seen in the emergency room due to red blotches on the medial calves, bilaterally. The examiner noted a resolved rash on the lower extremities with actinic keratosis of the right forearm and likely prurigo nodularis of the scalp. The veteran was also diagnosed as having xerosis. Service Connection - General Criteria In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Where a veteran served for 90 days in active service, nephritis or calculi of the kidney develop to a degree of 10 percent or more within one year from the date of separation from service, such disease may be service connected even though there is no evidence of such disease in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Herbicide Exposure Claims A veteran who had active service in the Republic of Vietnam at any time from January 9, 1962, to May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). When such a veteran develops a disorder listed in 38 C.F.R. § 3.309(e), which disorders have been shown to be caused by exposure to Agent Orange, to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Diseases to which the presumption applies are chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult- onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The above-listed diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii). The veteran is seeking service connection for a skin disorder and peripheral neuropathy of the hands and feet which he alleged is due to exposure to herbicides (Agent Orange) in service. As to his claim based on exposure to herbicides, the veteran's DD Form 214 indicates that he served in Vietnam. Exposure to herbicides is conceded. VA treatment records in 2005 and 2006 show a question of chloracne. Not only is chloracne not definitively diagnosed but the earliest indication of chloracne is well after the one-year presumptive period after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. Therefore, the nexus presumption found in 38 C.F.R. § 3.309(e) is not applicable as to this claim. The record also presents no basis for a grant of service connection for a skin disorder on a direct basis. The veteran was not seen in service for skin related complaints. Furthermore, no medical professional has provided competent medical evidence linking any currently diagnosed skin condition to any aspect of his active service, to include his presumed exposure to herbicides in service. Accordingly, service connection for a skin disease is denied. With regard to the veteran's peripheral neuropathy claim, the record lacks evidence that the veteran currently suffers from peripheral neuropathy. Accordingly, service connection for peripheral neuropathy of the hands and feet is denied. Brammer, 3 Vet. App. at 225. Kidney Disorder The evidence fails to show that the veteran had a kidney disability in service or thereafter. Accordingly, service connection is also not warranted for this claimed disability. Brammer, 3 Vet. App. at 225. Right Knee Disorder Service medical records show that the veteran suffered a pre- service injury to the right knee and that throughout service, the right knee occasionally gave way. Post-service medical evidence, however, fails to show any current right knee disability. Accordingly, service connection must also be denied for this claimed disability based on the absence of any medical evidence showing that it currently exists. Brammer, 3 Vet. App. at 225. Right Ankle Disorder Service medical records document a twisting injury to the left ankle but fail to show right ankle complaints or disorder of the right ankle. Furthermore, there is no post- service medical evidence showing that the veteran has been diagnosed with a right ankle disorder. Accordingly, service connection is also not warranted for this claimed disability. Brammer, 3 Vet. App. at 225. Tinnitus The service medical records are negative for evidence of tinnitus. In addition, there is no post-service medical evidence showing that the veteran has been diagnosed with tinnitus. In view of the absence of any medical evidence showing that the veteran has this claimed disability, the claim must be denied. Brammer, 3 Vet. App. at 225. The Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in this appeal. ORDER Service connection for a skin disorder, to include as secondary to herbicide exposure, is denied. Service connection for peripheral neuropathy of the hands and feet, to include as secondary to herbicide exposure, is denied. Service connection for a kidney disorder is denied. Service connection for a right knee disorder is denied. Service connection for a right ankle disorder is denied. Service connection for tinnitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs